State v. Moore
| Decision Date | 16 June 1890 |
| Parties | The State v. Moore, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. H. P. White, Judge.
Reversed and remanded.
Robinson O'Grady & Harkless for appellant.
(1) The court's definition of larceny forms a good definition of trespass but falls far short of defining larceny. Sackett's Inst. to Juries, sec. 8, p. 741 and p. 743 sec. 11; Nutzell v. State, 60 Ga. 264; State v Green, 81 N.C. 560; Mason v. State, 32 Ark. 238; Hart v. State, 57 Ind. 102; Com. v. Hurd, 123 Mass. 438; State v. Wood, 46 Ia. 116; 63 Ind. 223; Holser v. State, 5 S.W. 523; Hamlit v. Com., 5 S.W. (Ky.) 366; People v. Raschke, 15 P. 13; Kelly's Crim. Law, sec. 601, 328; State v. Warden, 94 Mo. 648. (2) The jury are erroneously told that Hardesty's possession of the horse must be considered as the possession of Campbell. It assumes that proof of possession and title has been made without allowing the jury to pass on it. Alexander v. State, 5 S.W. 840; Hall v. Adkins, 59 Mo. 144; 2 Bish. Crim. Law, sec. 808, p. 457; 2 Russ. on Crimes, 152. (3) The third instruction is erroneous because there is no evidence from which the jury could believe that defendant had stolen any other horse, or from which they could infer he had any other stolen horse in his possession. The language of the instruction assumes that defendant had a stolen horse in his possession other than the one named in the indictment. (4) The fourth instruction is not the law. Whar. Crim. Ev., sec. 750; State v. Mallon, 75 Mo. 357; Butler v. State, 80 Ind. 400. (5) The fifth instruction for the state is erroneous. It is only necessary that a reasonable doubt be raised in the minds of the jury by the defendant's explanation of his possession of recently stolen property. If the explanation is reasonable in itself, then the state must, in some other way, contradict the explanation, or the jury must acquit. Bean v. State, 5 S.W. 525; State v. Warden, 94 Mo. 648; Smith v. State, 6 S.W. 40; Young v. State, 3 South Rep. 881; State v. Manley, 38 N.W. 415; Greenl. Ev., sec. 32; People v. Flyn, 15 P. 102. (6) The court's seventh instruction should not have been given so far as it applies to the wife. State v. Underwood, 75 Mo. 234. (7) The eighth instruction is not the law. A reasonable doubt may be raised as well by want of evidence, as by the evidence. 80 Ind. 402. The instructions asked by the defendant should have been given. State v. Boone, 70 Mo. 649; McDaniel v. State, 7 S.W. 249; Willis v. State, 6 S.W. (8) The court should have instructed the jury, that the defendant's possession of the horse is conclusively presumed to be innocent, until, by other evidence, the property is shown, beyond a reasonable doubt, to have been stolen. (9) The evidence in this case, as to the fact of a larceny having been committed, is wholly circumstantial, and hence, the court should have instructed the jury, as to their duty in considering circumstantial evidence. Thompson on Trials, secs. 2508-2518; Fuller v. State, 7 S.W. 330; Guajardo v. State, 7 S.W. 331; Bond v. State, 4 S.W. 580; Schuler v. State, 4 S.W. 581. (10) The evidence is not sufficient to sustain the verdict. Taylor v. State, 18 Tex.App. 489; McIntosh v. State, 18 Tex.App. 284; Williams v. State, 5 S.W. 129.
John M. Wood, Attorney General, for the State.
(1) Flight after an offense has been committed raises the presumption of guilt, and it is not necessary to show that the flight was on account of the particular charge; this is for the consideration of the jury in determining what weight to give to the evidence, and does not affect its competency. State v. Frederic, 69 Me. 400; Whar. Cr. Ev. [9 Ed.] sec. 750; State v. Bush, 95 Mo. 199; State v. Williams, 54 Mo. 170; 1 Bish. Crim. Proc., sec. 1250. The testimony of the officers as to their being after defendant, meeting him and attempting to arrest him, and his escape, was competent. (2) Declarations of a defendant in his own favor are inadmissible. Whar. Cr. Ev. [9 Ed.] sec. 690. The refusal of the court to permit Wineberg, a witness for defendant, to state what defendant said at his stable at the time he said he had the horses there, was not error. (3) The court gave eight instructions on the part of the state, in which it correctly declared the law to the jury. First. The first is the general instruction as to the offense charged. R. S., secs. 1307 and 1308; 2 Bish. Crim. Law, sec. 7580n; State v. Owen, 78 Mo. 367. Second. The second, as to the possession of the horse by Hardesty being treated as the possession of Campbell. 2 Bish. Crim. Law, secs. 784, 794; 2 Bish. Crim. Proc., sec. 721. Third. The third, as to how far the possession by defendant of the other horse stolen at the same time may be considered by the jury. State v. Castor, 93 Mo. 242; State v. Phelps, 91 Mo. 478, and authorities cited. Fourth. The fourth, as to the presumption arising from flight. State v. King, 78 Mo. 555, and authorities cited. Fifth. The fifth, as to the presumption arising from the possession of property recently after the same has been stolen. State v. Kelly, 73 Mo. 608; State v. Owen, 79 Mo. 619; State v. Phelps, 91 Mo. 478. Sixth. The sixth, as to the credibility of the witnesses. State v. Thomas, 78 Mo. 327. Seventh. The seventh, as to the credibility of the testimony of defendant and his wife. R. S., sec. 1918; State v. Miller, 93 Mo. 263; State v. McGuire, 69 Mo. 197. Eighth. The eighth, as to reasonable doubt. State v. Nueslin, 25 Mo. 111; State v. Gonce, 69 Mo. 600; State v. Thomas, 78 Mo. 327; State v. Gann, 72 Mo. 374. The instructions given by the court fairly presented the whole case to the jury, and it was not error to refuse the instructions prayed for by defendant. State v. Smith, 80 Mo. 516; State v. Walton, 74 Mo. 270.
-- The defendant, indicted for stealing a horse belonging to Luther C. Campbell, on trial was found guilty, and, his punishment assessed at two years imprisonment in the penitentiary, has appealed to this court.
The testimony, in brief, is the following: The horse stolen was a large sorrel horse, belonging to Luther C. Campbell, and worth about ninety dollars; Campbell lived in and was engaged in the drug business in Kansas City, Missouri; the horse got his left hind foot hurt along in August, 1888, and on the twenty-ninth day of that month Campbell sent him to the pasture of Mr. Hardesty, which was in another part of the city and distant about one and a half miles from where Campbell lived; Hardesty took the horse to pasture, and he remained there until Friday, the twelfth day of October, 1888, when he and another horse, which was being pastured there, were stolen; there was a barbed-wire fence around the pasture, and the only place discovered where the horse could have gotten out was a place in the fence where the lower wires were tied together; by this means, and the top wire being raised up, they could have been taken out; after the horse was stolen, the owner found him in the possession of Mr. Clariday, fifteen miles north of the city, and took him home; the horse was traded to Mr. Clariday by defendant on Saturday morning, the thirteenth of October; on the day previous, defendant, being indebted to Mr. Clariday, told him that some one had traded for five horses for him, and he would be able to deliver him four in payment of his indebtedness; he said he hadn't seen them yet and could not describe them, and could not deliver them that day, but would do so on the first boat in the morning. The next morning Mr. Clariday went to the ferry, getting there about daylight, and crossed the river two or three times, looking for defendant, before he could find him; finally met him on the opposite side of the river -- defendant having crossed before daylight, the reason he did not meet him earlier, and no one saw him when he was crossing.
Defendant said he did not bring but two horses. He had them tied back about two hundred yards, and not in sight of the ferry. The two horses in his possession were described as the same horses that were stolen the night before from Hardesty's pasture. When Clariday traded with him he wanted him to go down to see Tining, as he wanted a witness, and defendant at first declined, claiming that he was in a hurry. Officers Park and Burns after this saw defendant and another man, and attempted to arrest them, and notwithstanding they were fired at several times they succeeded in making their escape, but the next morning they arrested defendant.
The defense undertook to show a purchase of the horses by defendant from a stranger -- a mover. Defendant, in attempting to account for his possession of the horse, claimed he had bought him, together with five or six other horses, from a mover; that he had traded land for them. Said that he had bought them on Friday morning, before he had the talk with Clariday about delivering them to him, and that at the time he had this conversation the horses were in his stable at home; and he denied escaping or running from the officers.
At the conclusion of the testimony the court of its own motion gave these instructions:
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